March 29, 2023

Senator presented whistleblower slide deck, AG Garland claims no knowledge

WASHINGTON, D.C., March 29, 2023 – U.S. Senator Katie Britt (R-Ala.) yesterday during a hearing of the Commerce, Justice, Science, and Related Agencies (CJS) Subcommittee of the Senate Committee on Appropriations questioned U.S. Attorney General Merrick Garland about the Department of Justice’s failure to impartially enforce federal law – and ultimately uphold the rule of law.

Senator Britt referenced recent testimony by the Attorney General in regards to why no one was prosecuted for harassing Supreme Court Justices outside of their homes in the time between the leak of the Supreme Court’s draft decision in Dobbs v. Jackson Women’s Health Organization and when the final decision was issued. According to 18 U.S.C. §1507, it is illegal to picket or parade near a residence occupied by a judge with the intent of “interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty.” Despite this law being on the books, multiple Supreme Court Justices were subject to over a month of near-constant, organized protest at their homes while they were still weighing the historic case.

In her line of questioning, Senator Britt revealed that she obtained a slide deck used to prepare U.S. Marshals personnel for their protective details outside of Justices’ homes. In contradiction to the Attorney General’s recent testimony before the Senate Committee on the Judiciary, the slides downplayed the authority of the Marshals to arrest protestors under 18 U.S.C. §1507 and explicitly encouraged the Marshals not to make arrests and initiate prosecutions. Rather than being empowered to exercise individual decision-making authority, Marshals protecting the Justices’ homes were told to coordinate with the relevant DoJ U.S. Attorney before pursuing an enforcement action.

The slides were obtained from a whistleblower in DoJ who was concerned about the Attorney General’s misleading testimony before the Judiciary Committee.

Video of the line of questioning can be found here.

A transcript is as follows: 

Britt: I am a big believer, and I’ve heard this all over the state of Alabama as I’ve traveled: people want justice to be blind. They believe that is a foundational building block of our nation. And, until we restore that trust and confidence, people are worried about the direction our nation will go.

You testified several weeks ago before the Senate Judiciary Committee and fielded a number of questions from committee members regarding DoJ’s failure to prosecute any individuals who were involved in the illegal protests outside the homes of multiple Supreme Court Justices in the aftermath of the leaked Dobbs opinion.

As you are well aware, 18 U.S.C. §1507 makes it a crime to picket or parade near a residence occupied by a judge “with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty.”

In answering questions from multiple members of the committee, you repeatedly asserted that DoJ’s failure to bring any charges under Section 1507 was due to the fact that the U.S. Marshals who were protecting the homes of the Justices failed to make any arrests under that statute.

You said, “The Marshals have been advised and they know – the Marshals on the ground – they have full authority to arrest people under any federal statute, including that federal statute.” That was in direct reference to Section 1507.

You went on to say, “The Attorney General does not decide whether to arrest…the Marshals on scene…they do make the decision of whether to make an arrest.”

After your appearance before the Judiciary Committee, we obtained copies of the slide deck that was used to train and prepare the Marshals for their protective details at the home of the Justices. Those training materials show that the Marshals likely didn’t make any arrests under Section 1507 for a pretty simple reason – they were actively discouraged from doing so.

As you can see on the slide behind me, the Marshals were explicitly told to avoid, unless absolutely necessary, any criminal enforcement actions involving the protestors.

The slides went on to say, they explicitly state, that making arrests and initiating prosecutions was not the goal of the Marshals’ presence at the homes of the Justices. And the “not” was actually italicized and underlined.

The next slide directs the Marshals not to engage in protest-related enforcement actions beyond those that were “strictly and immediately necessary and tailored” to ensure the physical security of the Justices.

If you’ll see in the next slide here, it discourages the Marshals from making arrests under Section 1507 by asserting that there may be a First Amendment right to harass the families of the judges and by concluding that “any arrests of protestors are a last resort” to prevent physical harm to the Justices.

Mr. Attorney General – yes or no – were you, at any point before your testimony in front of the Judiciary Committee, aware of these training materials or the fact that the Marshals had been heavily discouraged from making arrests under Section 1507?

Garland: This is the first time I’ve seen the slide deck. And, frankly, from here I can’t make it out, which I apologize for my eyesight, but I can’t make it out. What I said before was correct, that their first and principal job was to protect the lives and property of the members of the Court. And as I said at the time, I’m the first Attorney General who has ever ordered Marshals to protect the residences of the Justices and protect them 24/7. That’s their principal responsibility, but that doesn’t mean that they are in any way precluded from bringing other kinds of arrests.

Britt: Thank you, Mr. Attorney General, I do have another question in a few moments. But when you say they were given the full authority to arrest people violating Section 1507, I would ask, will you take a look at these slides, these materials? Dig into them. It is clear that these Marshals were given directives that limited, that narrowed the scope (of their authority). Of course, the physical safety of our Supreme Court Justices is paramount, and we thank you for sending those Marshals there. 1507, though, actually is more all-encompassing than that narrowly tailored objective. It says picketing or parading near a [residence], if you’re doing it with the intent to interfere with, obstruct or impede the administration of justice or influence any judge in the discharge of their duty – it is clear when you look at these slides, the Marshals were not given those directives. I would like for you to take a look at that, and, if you agree with that statement, I would like for you to amend your testimony to the Judiciary Committee.

Garland: Well, there is nothing for me to amend, because as I said, I have never seen those slides before.

Britt: I know I need to yield my time. It’s clear the Marshals were given a different directive, and I would ask you to look into that please.

Garland: I will.

The slides Senator Britt referenced are available here.